Privacy And Puttaswamy For The People's Palate: Part 1 of 3

Introduction

A 3-judge bench of the Court in 2015 while hearing the constitutional challenge to the Aadhaar card scheme of the Union government noted that the scheme was being questioned on the ground that it violated the right to privacy. The Attorney General for India pointed out the obvious barrier to this challenge, that is, the judgments in M.P. Sharma v. Satish Chandra^[2]("M.P. Sharma") and Kharak Singh v. State of U.P^[3]("Kharak Singh") delivered by benches of 8 judges and 6 judges respectively. The judgment in M.P. Sharma while hearing writ petitions related to search and seizure of documents on the ground that the said search and seizure was in violation of Articles 19(1)(f) and 20(3), rejected the existence of a right to privacy under the Constitution as there existed no provision akin to the Fourth Amendment of the United States Constitution^[4]. 8 years later, in Kharak Singh, the Court struck down certain Uttar Pradesh Police regulations permitting domiciliary visits on the ground that personal liberty of an individual was being violated but, the majority opinion did not go to the extent of reading the right to privacy into Part III of the Constitution. Therefore, a bench of nine judges was set up to definitively determine once and for all whether there existed the right to privacy anywhere in the contours of our Constitution.

Chelameswar J.'s opinion

At the outset of his opinion Chelameswar J. delves into the question of whether M.P. Sharma and Kharak Singh were decided correctly. The Court in M.P. Sharma held that the power of search and seizure is an overriding power of the State and that there can be no strained construction to read the Fourth Amendment of the United States into our Constitution.

Chelameswar J. rushed to the defence of M.P. Sharma and stated that there is nothing in M.P. Sharma that states that there is no right to privacy, but that the learned judges in that case refused to read into Article 20(3) of the Constitution restrictions on the power of search and seizure that were not envisaged by the framers of our Constitution. The decision in M.P. Sharma was further fortified on the grounds that the focal point of the case was Article 20(3) and since, it was the era of A.K. Gopalan v. State of Madras^[5], the compartmentalization of fundamental rights was very much the order of the day.

Next, the issue regarding constitutionality of police regulations was raised in Kharak Singh. By this time, the Court was slightly more-broad minded in its approach, and this was reflected by the powerful dissent of Subba Rao J. (as he then was). The majority discussed the ambit of the term 'personal liberty' in Article 21 of the Constitution so as to include all those aspects that were not included under Article 19(1) which was exhaustive in nature. While the majority acknowledged that there existed a right to privacy in the United States Constitution, there was no similar provision in the Indian Constitution. On the other hand the minority opinion held that the right to privacy is an essential ingredient of personal liberty and that Article 21 must be considered to be repository of personal liberty and not merely a residual provision to include those liberties that are not found under Article 19(1). While the judgment may be hailed for holding domiciliary visits as unconstitutional, Chelameswar J. was unable to fathom the logical fallacy as the majority in Kharak Singh reiterated what M.P. Sharma had said, that absence of a provision akin to the Fourth Amendment would negate the claim to the right of privacy but, at the same time protected personal liberty under Article 21 by relying upon the immortal words of Lord Coke which loosely meant "every man's house is his castle".^[6]

Chelameswar J. then highlighted the incorrect interpretation by the majority in Kharak Singh to exclude the right to privacy from the bundle of rights under Article 21, on the ground that an important basis of constitutional interpretation is the acknowledgement of implications within the text of a document such as the Constitution. Chelameswar J. then referred to the detrimental effects of merely adhering to the text of the Constitution and stated that if that was the case, rights such as the freedom of press may never have been protected and further alluded to rights such as right to earn a livelihood^[7], the right to education^[8], the right to speedy trial^[9] etc. The rigid textualist approach is untenable and is against the theory of purposive interpretation which brings out the real intent of the document, which in this case is the Constitution. The purposive approach allows the Courts to broaden the scope of the Constitution and include rights that the drafters of the Constitution could not have foreseen at that time.

Chelameswar J. adopts the inter-play of various rights in Part III and takes it one step further by stating that the entire scheme of the chapter is to be looked as a 'rational continuum' of 'liberty' as freedom from arbitrary encroachments by the State. He then endorses the view of the United States Supreme Court in Griswold v. Connecticut^[10] wherein the Court held that privacy would extend to two zones- 'repose' and 'intimate decision'. The same was taken further by Gary Bostwick^[11] to include 'sanctuary' as well. While accepting that these might be abstract concepts, it is opined that 'definitional uncertainty' is no ground to not recognize the right to privacy.

It is interesting to note that Chelameswar J. does not deem it sufficient to state that the restrictions to the right to privacy shall be decided on a case to case basis. He goes on to enlist the possible options that may act as a check on the powerful right to privacy. Out of these, he states that that only the criteria of fair, just and reasonable as laid down in Maneka Gandhi v. Union of India^[12] and 'compelling state interest' as used in Gobind v. State of M.P.^[13]("Gobind") would need to be relied upon, the reason being that the possibility of a privacy claim not tracing its roots to Article 21 was bleak. The compelling state interest test according to Chelameswar J. is the supreme test of whether the right to privacy needs to be limited as it weighs the State's interest against the individual's right and while concluding it is admitted that the 'compelling state interest' test does not have any boundaries so before adopting it, the situations wherein the same would be applicable must be enumerated.

Sapre J.'s opinion

Sapre J. opens his 24 page opinion with references to the Preamble of the Constitution to show that it was drafted carefully by the founding fathers and the words contained therein were put in a manner so as to provide meaning and significance. He interprets the word 'dignity' in the Preamble to mean respect to the personality of each citizen and to provide a conducive environment for every citizen to be left free to find their identities. It is opined that the Courts must strike a balance between the constant changes in society and the rights guaranteed to each individual and the same can be done by ensuring the protection of liberty, equality and fraternity in accordance with the rule of law. Further, Sapre J. makes it very clear that it was not possible for the framers of the Constitution to include each every right in Part III of the Constitution and that the Court has, at every occasion, arisen to the needs and requirements of the prevailing situation to breathe life into the Constitution by incorporating rights that were previously not found in our system. Interestingly, it is pointed out that Article 21 is probably the shortest article in the Constitution of India but, as termed by Dr. Ambedkar, is the heart of the Constitution.

Before seeking to answer the questions put forth, Sapre J. reminds us that while it is a known fact that in the early years of the Court, judgments of the English courts were relied upon for interpretation, in the last 70 years the Court has developed its own robust and distinct identity suited to the needs of the Indian people being led by the guiding light that is the Preamble to the Constitution. Sapre J. opines that the right to privacy is inherent in an individual and that there is no meaningful life with dignity if this right does not exist. It is further stated that every civilized society governed by the rule of law must recognize the right to privacy to maintain and preserve the dignity of an individual. This brings the discussion full circle as it establishes the deep rooted relationship between dignity in the Preamble and the right to privacy found in Article 21. At this juncture, comes the question of restrictions to be imposed on this omnipresent right and the answer as per Sapre J. is the 'social, moral and compelling public interest' test. In an attempt to rein in this test, the learned judge states that the State is entitled to impose the test by enactment of law. Interestingly, Sapre J. drew from the opinions in Gobind and Canara Bank^[14] that the right would emanate from Article 19(1)(a) and (d) and Article 21( but, neither of the abovementioned cases expressly declared the right to privacy as constitutionally protected possibly because they were bound by the larger bench decisions in M.P. Sharma and Kharak Singh) which led him to the conclusion that it would be subject to reasonable restrictions based on social, moral and compelling public interest. Summing it up, Sapre J. holds that the right rests upon 5 pillars- 'dignity' and 'liberty of thought, expression, belief, faith and worship' in the Preamble, Articles 19(1)(a) and (d), and Article 21 in Part III of the Constitution.

Conclusion

Chelameswar J. is a known judicial conservative which is to say he believes in adhering to the text of a document. His commitment to not going beyond the text of the Constitution is indicated by the robust defence of M.P. Sharma on the ground that the era of 'living constitution' had not yet dawned upon our judicial system and in the early years of the Court, the judges were not known to go beyond the written words of the Constitution thus, conceding to the wisdom of the framers. Even Chelameswar J., the textualist, could not deny the existence of implied rights within our Constitution to the extent that he terms the exposition of the basic structure doctrine in Kesavananda as 'outstanding' and 'brilliant'.

In this opinion we see Chelameswar J. operating as a surgeon or a military commander, answering with precision very specific points raised before him and not venturing into contemporary or connected areas. In his unique style, he meticulously explains the existence of the right to privacy in the penumbra of our Constitution, where it may be found and the touchstone upon which it may be tested, thus, clearly answering the three questions with which he had opened his opinion.

The highlight of Sapre J.'s opinion, which expresses a deep commitment to upholding Constitutional ideals enshrined in the Preamble, was the belief that the right to privacy could be extracted on an examination of opinions of the Supreme Court of India and that reference to judgments from the United States was not warranted. In addition, Sapre J. takes the test relied upon by Chelameswar J. to act as a check on the right to privacy, the compelling state interest, which the latter adopts from the decision of the Court in Gobind, and takes it further as 'social, moral and compelling public interest'. The origins of this test may be unclear but, it seems to set a very high bar on the restriction of the right as it provides for many criteria such as social, moral and compelling public interest to be satisfied before it may be applied to check the right. The words 'social' and 'moral' are of an extremely wide connotation and raises many questions such as the extent of these phrases in the context of the right that is sought to be curtailed. Lastly, as this test enters into unchartered waters and does not have a judicial origin like the 'compelling State interest' test, it remains to be seen whether the elaborate test would be of any practical use or would it become a powerful arrow in the quiver of the Constitutional Courts to protect the cherished fundamental rights.